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How to Talk About Your Nonpatented Invention Without Having Your Idea Stolen

How to Talk About Your Nonpatented Invention Without Having Your Idea Stolen

So you have a great idea or invention and you're considering obtaining a patent.

What is a Patent?

A patent is a type of intellectual property protection provided by the US Government for inventions. By obtaining a patent for your invention from the US Patent and Trademark Office (USPTO), you're staking claim to your idea and excluding others from making, using or selling that invention. Your patent gives you ownership of your invention for a set amount of time and can be used to prevent others from profiting from your hard work.

One of the most valuable parts of an invention is the idea itself, which means it's important to be careful about sharing the idea with others lest someone steal it—especially if you have yet to apply for a patent. Here are some guidelines for talking about your invention and only disseminating details to the right parties.

Know the Law

There are very specific laws governing what sorts of disclosures you can and cannot make and still have your invention protected prior to filing your patent application. To paraphrase Judge Reinhold in Fast Times at Ridgemont High: Learn them. Know them. Live them. Knowing what you can say, where you can say it and—most importantly—what starts your clock running on the time within which you must file your application, can mean the difference between getting your patent and losing control of your invention. Thinking about writing a white paper on it? Learn the law. Want to present to a group of potential investors? Learn the law. Thinking about advertising or selling your invention to market test it? Learn the law. Any one of these things (and many more) can start your clock running, and if you don't know when you've done what—and when, accordingly, you have to file—you may lose your rights. This is a very important area of the law—proceed with extreme caution.

Consider a Nondisclosure or Confidentiality Agreement

If you are considering meeting with potential partners, vendors or investors, and think you'll have to share at least part of your nonpatented idea, consider a nondisclosure agreement (NDA).

NDAs and similar confidentiality agreements make clear, in writing, that your invention is confidential and the parties privileged to know about it must not release any information to others without your permission. Do keep in mind, though, that not everyone will be willing to enter into such an agreement, especially large corporations or investment firms. (You might even find yourself signing an agreement for such a company stating that your idea is not a secret, thereby insulating them from potential liability.) Weigh very carefully the pros and cons of disclosing under such circumstances.

Don't Share It Online

These days, people are very comfortable displaying their lives online. But talking about or posting your brilliant invention on a social network opens you up two major threats. The first is the threat of a connection—even someone you may not know—taking your idea and running with it. Hey, if it's online it's no longer private, right?

For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

Essentially, Facebook asserts that for as long as your status/post/comment containing any intellectual property resides on the site, you're giving the company the right to do whatever it wants with it.

The take-away: the hazards far outweigh the benefits here. While it may be nice to see your idea all over the Internet, and to have your mom and all your friends “Like” it on Facebook, all those warm fuzzies will disappear the second you see your invention for sale by whoever happened by your page that day and beat you to the punch.

File a Provisional Application for Patent

If you're worried about the cost of getting a patent, or simply do not want to wait to get the process started, a provisional application for patent could be just the answer for you. A provisional application for patent lets you immediately label your invention “patent pending” for up to one year from filing, which puts all parties on notice that your invention is protected while you conduct market research, seek peer review, court investors and so forth. During the twelve months of “patent pending” status, you can then decide whether to file a corresponding non-provisional application with the USPTO for full patent protection.

Long story short: BE PREPARED. Before you start sharing your valuable invention with others, be sure you know the law and have adequate protection in place. Talking about your unprotected intellectual property is like going out in the sun without sunscreen. It's your choice, but don't be surprised if you get burned.

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LegalZoom gladly provides services to citizens of the EU wishing to start a business or protect their intellectual property in the United States. Additional costs may apply.